How Constituent Assembly debated Uniform Civil Code

The Uttarakhand government implements the Uniform Civil Code (UCC) on Monday, becoming the first state in independent India to put into effect such a law. The UCC has been debated since the inception of the Indian Constitution.

Prime Minister Narendra Modi has justified his government’s efforts to formulate a “secular civil code” by quoting Dr. B.R. Ambedkar and K.M. Munshi’s statements made in the Constituent Assembly on November 23, 1948. Let’s revisit how the Constituent Assembly debated the UCC, and what was the stance of noted figures on it. 

Reflecting on the extensive process of creating one of the world’s largest written Constitutions, particularly on the Constituent Assembly debate on the UCC, allows us to appreciate how the framers of the Constitution built consensus despite political, cultural, religious, ideological, and other differences. 

Debate on the UCC 

Constituent Assembly debates are a valuable reference to understand what the framers of the Indian Constitution envisioned while drafting each article. These debates inform on the intention and spirit behind the constitutional provisions and principles. While the constitutional provisions are the final outcomes, the debates highlight the diversity of opinions and the ability of representatives – who spoke for the heterogeneous masses of the newly independent nation – to reconcile conflicting positions.

Although the political debate on the UCC dates back to the early 1940s, its constitutional journey began during the committee stage of constitution making in 1947. A debate kicked off in the Fundamental Rights Sub-Committee over whether the UCC should be included in justiciable or non-justiciable fundamental rights. Ultimately, the UCC was incorporated into the list of non-justiciable Fundamental Rights with the support of the majority, and a report was submitted to the Advisory Committee suggesting the separation of justiciable and non-justiciable rights. 

However, three members of the Sub-Committee – M R Masani, Hansa Mehta, and Amrit Kaur – expressed their dissent to the majority decision. They stated, “One of the factors that has kept India back from advancing into nationhood has been the existence of personal laws based on religion, which keep the nation divided into watertight compartments in many aspects of life. We are of the view that a uniform civil code should be guaranteed to the Indian people within a period of five to ten years.” 

The UCC provision, drafted as Article 35 and submitted to the Constituent Assembly by the Drafting Committee on February 21, 1948, later found its place in the Directive Principles of State Policy in the draft Constitution. Article 35 read, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” An acrimonious debate over draft Article 35 took place on November 23, 1948, in the Constituent Assembly.  

UCC and the constitutional protection of religious freedoms

The debate on the UCC began when Mohamad Ismail Sahib, a member of the Constituent Assembly from Madras, moved an addition to Article 35: “Provided that any group, section, or community of people shall not be obliged to give up its own personal law in case it has such a law”. He justified it by underlining that the right to follow and adhere to personal law is part of justiciable fundamental rights. Sahib cautioned that the future secular state should not interfere with the way of life and religion of its people. 

However, the proposed amendment generated significant contention over whether personal laws and religious rights should take precedence over a uniform civil law applicable to all citizens. Mohamad Ismail clarified that his amendment did not pertain to solely minorities but addressed the religious rights of all sections of the population, including the majority community. Contending the argument that a UCC would help promote harmony through uniformity, he maintained that such a law could instead lead to disharmony and discontent among people. 

Supporting Sahib’s amendment, B. Pocker, another member of the Constituent Assembly from Madras, asserted that the imposition of such a law would be a “tyrannous provision”. He reiterated that it was not a minority question. Mahboob Ali Baig also supported Sahib’s position and moved a similar amendment, calling for the protection of personal laws. Pocker and Naziruddin Ahmad contended that the proposed Article 35 would conflict with draft Article 19 (now Article 25) of the Constitution, which guarantees the right to freely profess, practice, and propagate religion.

UCC, not merely a minority question

In response to calls for the protection of religious rights, Krishnaswami Bharathi suggested that the consent of communities could be a prerequisite for making changes in their personal laws. In the course of the debate, Naziruddin Ahmad moved another amendment to the draft Article 35, stipulating that the personal law of a community shall not be changed without its prior approval. Although Naziruddin Ahmad was sceptical about a UCC that may upset the right to freedom of religion, he did not vehemently reject the proposal. 

He remarked, “I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come.” In essence, he supported the idea of UCC but emphasised that the process for its implementation needed to be gradual and carried out with the consent of the communities involved. He urged that we should proceed “with caution, with experience, with statesmanship, and with sympathy”. 

Reminding the Assembly of the extensive discussions on the UCC in various committees before it was brought to the House, K. M. Munshi categorically stated that the proposed Article 35 neither infringed on freedom of religion nor imposed tyranny on minority communities. He asserted the right of Parliament to make laws without violating minority rights, especially when religious practices involved secular activities or fell within the realm of social reform or welfare. Citing the cases of Turkey (Türkiye) and Egypt, he added, “Nowhere in advanced Muslim countries the personal law of each minority has been recognised as so sacrosanct as to prevent the enactment of a Civil Code.” 

Munshi, acknowledging that the UCC was not merely a minority question, argued that a unified civil code would also address the issue of diverse and inconsistent laws among Hindus in different parts of the country. He said that “it is more tyrannous to the majority”. He also believed that the inclusion of the UCC in the Constitution would enable the State to legislate on matters of gender discrimination legitimised by religious practices, thereby promoting equality for women. 

Alladi Krishnaswami Ayyar wholeheartedly supported Munshi’s arguments, asserting that the UCC aimed at fostering amity in a unified nation striving to move beyond its past divisions. Supporters of the UCC pointed to the examples of European countries where civil matters are regulated under a uniform law. Nevertheless, members like Hussain Imam openly expressed their trust in the ingenuity of Ambedkar to find solutions to the controversial issue and address the concerns of minority communities. 

Ambedkar on the UCC 

Despite harsh criticisms, Ambedkar began his intervention in the debate with a categorical statement that he was unwilling to accept the amendments proposed to Article 35. In response to Hussain Imam’s query about whether it was possible to have a uniform code of law for a country like India, Ambedkar argued that India already had a common criminal law and unified civil codes, except in the areas of marriage and succession. He refuted the statement that Muslim personal law was immutable and uniform throughout the territory of India, citing examples from North-West Frontier Province, United Province, and North Malabar. 

However, after understanding the concerns of the communities involved, Ambedkar gave an assurance to the Assembly that the State after framing the UCC would not enforce it on all citizens without their consent. He stated, “It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary.” 

The debate in the Assembly concluded with Ambedkar’s opposition to the amendments and his assurance to the concerned communities. Eventually, the Assembly adopted Article 35, which was renumbered as Article 44 in the original Constitution adopted on November 26, 1949. 

Post Read Questions

How did the Constituent Assembly address the potential conflict between the Uniform Civil Code (UCC) and religious freedom?

What were the main concerns raised by minority leaders regarding the implementation of the Uniform Civil Code (UCC)?

How did K. M. Munshi defend the inclusion of the Uniform Civil Code (UCC) in the Constitution, particularly concerning freedom of religion? What role did global examples, such as Turkey (Türkiye) and Egypt, play in K. M. Munshi’s argument for a Uniform Civil Code?

Why did Naziruddin Ahmad stress the need for a gradual implementation of the Uniform Civil Code (UCC), and what did he mean by proceeding “with caution, with experience, with statesmanship, and with sympathy”?

How did members like Hussain Imam express trust in B. R. Ambedkar’s ability to balance reform with minority rights?

(Dileep P Chandran is an Assistant Professor at the department of Political Science in University of Calicut, Kerala.) 

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